The Cautious Lawyer and the Risk-Averse Legal Profession

-- CaseyBoyle - 05 Apr 2008

Many lawyers are risk-averse. These lawyers are risk-averse by nature because the legal profession attracts the individual who is, inherently, cautious and risk-averse. They are risk-averse by conditioning because law school and the profession itself promote risk-averseness. The cautious lawyer and the risk-averse legal profession produce an adverse societal effect – they preclude the use of the law as an innovative tool for social change.

• These generalizations are false. Some lawyers are risk averse and others aren't. You don't meet many risk loving lawyers in your law school class, and you don't know how to identify them when they pass through the law school to meet you, but that doesn't mean they don't exist. Your initial theme is correct in the subjunctive--were lawyers always risk averse, law would not be effective in making social change undesired by the ruling class. Fortunately, we don't live in the subjunctive.

Risk-averse by nature

Many individuals who go to law school tend to be, by nature, risk-averse. The legal profession offers a perceived guarantee of high-status and -income, and attracts individuals captivated by the seemingly risk-free path toward that end.

At the upper levels of the profession, risk-averseness might be especially pronounced. The prospective lawyers who are accepted to prestigious law schools are those with the most commendable resumes, and have thus grown accustomed to the praise that accompanies high achievement. Once enraptured by such praise, the individual will seek out those endeavors in which he is bound to triumph. The legal profession, with its guarantee of success and good fortune, is a common pick. The formula is oft-repeated by law school administrators and students themselves: if you go to a top-tier law school, you get a job in a top-tier firm. And this does not even require better-than-mediocre academic achievement. Thus, a scenario is created that the cautious, self-doubting, and afraid-to-fail prospective law student relishes and gravitates towards.

• But, because one wouldn't expect to look to the law firms that serve the business interests of the ruling class for the risk-taking work of pressing for social justice, your analysis actually points away from your conclusion, and towards a proposition with a very different valence. You are providing reason to believe that the ruling class is primarily served and defended by timid lawyers.

Risk-averse by conditioning

The culture of law school and the substance of the legal profession reinforce these risk-averse tendencies. Risk-averseness is engrained in the law school curriculum and in the culture of law school. The 1L curriculum, one that has changed little over the years, consists of an array of common-law courses. Students are not taught how to use the law as a dynamic tool for social change and judicial decisions are analyzed without much attention to either context or to aftermath. Rules and doctrine are the focus. Policy and innovation seem to be afterthoughts, only discussed after students extract the rules from the cases.

Risk-averseness also pervades the law school culture. The custom seems to be that most 1Ls blindly follow what the older and wiser 2Ls tell them. If a 2L tells you to “submit your summer associate firm applications by December 1st or else,” you’d better do it. If a 2L tells you to buy the Chemerinsky treatise for Con Law, head to the nearest bookstore before you find yourself with a dreaded B minus. This risk-averseness is evident during exam time. Students who, in September were comforted by the prospect of that guaranteed “B,” now find themselves locked in the library for 15 hour days “just in case.”

The risk-averseness bred in law school then directs the prospective lawyer into those corners of the profession which offer the perceived guarantee of success and good fortune. Once nestled at their Big Law jobs, many lawyers eschew the prospect of using their license in ways that could uproot the comfy lifestyle that life at the large firm has created for them. At this point, caution is the name of the game and staying put seems to be the path most traveled.

The Social Effect of Risk-Averse Lawyers: How they are hurting society

Lawyers who are cautious by nature and risk-averse by conditioning are afraid to be innovative; few start their own firms or enter non-traditional legal fields. Many law students choose careers in Big Law which offer the prospect of material privilege, instead of pursuing more entrepreneurial, innovative, or public-interest minded careers that lack this guarantee. Many might choose this path because it is tried-and-true, and thus has obvious appeal to the cautious lawyer. In addition, because the culture of law school doesn’t prepare the lawyer for careers other than one in Big Law, the lawyer doesn’t know how to go about using the law in innovative ways. The road of law school seems to lead to only one destination. And to the risk-averse J.D., it is an alluring one.

Once nestled in his high-prestige position, the lawyer is further prevented from using the law in socially innovative ways. Now employed at the “Firm” and working for the “Partner,” the lawyer is cabined into certain practice areas and limited to certain clientele. These lawyers, now well-adapted to the comforts of material success, refuse to put their careers on the line to pursue an avenue that is more innovative and risky. As Veblen writes, the leisure class is marked by social conservatism, a feature that comes to be recognized as a mark of respectability, while innovation comes to be seen as improper, even “vulgar.” (199, 200). He says that because “the exigencies of the general economic situation of the community do not…directly impinge upon” the leisure class, that class becomes the barrier that retards “social evolution.” (198).

Conclusion

The risk-averseness that pervades both legal education and the profession at large creates non-entrepreneurial lawyers who don’t know how to use, or are discouraged from using, the law in innovative, socially-productive ways. The lure of guaranteed material success induces the cautious individual to go to law school. The culture of law school itself conditions the prospective lawyer to choose the most tried-and-true path, one that the cautious law student finds compelling. Once on this path, the lawyer disposes of his ability to use his license in socially innovative and productive ways. This cycle, effectively, reduces the law’s ability to effect dynamic change for the betterment of society.